child custody 101: an introduction to new jersey child custody

Child Custody 101An Introduction to New Jersey Child

Custody

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Presented by:

Family & Divorce Lawyers in New Jersey

Child custody 101: Disclaimer

• This presentation contains general information and does not constitute legal advice.

• Be sure to direct specific questions about your own situation to an attorney.

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SectionsChild Custody 101: An Introduction to New Jersey Child Custody Law

1.The Best Interests of the Child Standard2.Legal Custody vs. Physical Custody3.New Jersey Court Procedures4.Modifying Custody Orders5.Enforcing Child Custody Orders

Questions & Additional Help

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The Best Interests of the Child Standard

Child Custody 101: Best Interests of the Child

The Best Interests of the Child

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The law is gender neutral and parents have equal rights and responsibilities

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• Determining appropriate custody requires consideration of all facts, and is gender neutral. • No form of custody is given automatic

preference, but frequent and continuing contact with both parents is presumed to be in the child’s best interests.


How do Courts Decide Custody?

1. Agreements Between Parents 2. Court Orders

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1. Agreements Between Parents

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• Courts prefer parents to make their own agreements about how to share parental responsibilities and parenting time.

• Parents can work together to develop a schedule that fits the needs of everyone in the restructured family.

• To be upheld in court, a parenting agreement must comply with the “best interests of the child.”


2. Court Orders

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If parents cannot agree on a parenting plan that meets the child’s best interests, the court will order a plan.


New Jersey Child Custody StatuteN.J.S.A. 9:2-4

Whether the parents reach agreement or the court orders a plan, the factors in the New Jersey child support statute must be considered in determining the “best interests of the child.”

The factors listed are not exclusive. Courts can consider all relevant factors.

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Statutory Factors: Safety

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• any history of domestic violence,

• the safety of the child and either parent from physical abuse by the other parent,

• the parent’s fitness,


Statutory Factors: Emotional Needs

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• the interaction and relationship of the child with parents and siblings,


Statutory Factors: The Status Quo

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• the extent and quality of the time spent with the child prior to or subsequent to the separation,


Statutory Factors: Practical Concerns

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• the child’s needs,

• the stability of the home environment offered,

• the quality and continuity of the child's education,

• the geographical proximity of the parents' homes,

• each parents' employment responsibilities, and

• the age and number of the children.


Statutory Factors: Preference of the Child

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• the preference of a child who is of sufficient age and capacity to reason so as to form an intelligent decision.


Statutory Factors: Ability to Co-parent Effectively

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• the parents' ability to agree, communicate and cooperate in matters relating to the child,

• the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse.


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Legal Custody vs. Physical Custody

Child Custody 101: Legal vs. Physical Costody

Legal Custody

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Legal custody governs a parent’s authority to participate in major decisions regarding a child’s health, education, and general welfare.

•Includes schooling, religious upbringing, and medical treatment beyond routine or emergency care. •Can be sole or joint, but joint legal custody is pretty much the default in New Jersey unless one parent is absent or abusive.•Joint legal custody usually means parents make all decisions together but in some cases, one parent will have authority over certain aspects and the other will have authority over other aspects.

Child Custody 101: Legal vs. Physical Custody

Physical Custody

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Physical custody governs which parent a child lives with.

•One parent can have sole physical custody or parents can share custody.

•Sole physical custody usually allows for liberal visitation by the noncustodial parent.

•Joint physical custody is considered “shared custody” when it approaches equal time-sharing and there is also full sharing of parenting responsibilities (highly significant in move-away cases, as discussed later in this presentation).


Common Child Custody Arrangements

Joint Legal Custody: Shared decision-making with one primary residential parent (most common)

Shared Legal and Physical Custody: Equal or nearly equal parenting time with equal responsibilities (also common, but requires above-average co-parenting skills)

Sole Legal and Physical Custody (unusual unless one parent is absent or abusive)

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Joint Legal Custody with a Parent of Primary Residence

• Parents share decision-making authority for children’s health, education and general welfare, while the parent a child is with at any given time makes day-to-day decisions in the child’s best interests and notifies the other parent as appropriate.

• The child usually resides with one parent the majority of the time while the other parent has a more traditional visitation schedule.

• Even when the physical custody approaches 50/50, it will not be considered “shared physical and legal custody” unless the parents also share parenting responsibilities equally.

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Shared Legal and Physical Custody

• Generally refers to a parenting arrangement where children spend equal or nearly equal time with each parent and parents share day-to-day parental responsibilities equally.

• This is less common than joint custody with a primary parent, as it requires a high degree of communication and collaboration.

• Scheduling options include alternating weeks or splitting weeks—sometimes alternating one day and night of each week to equalize the time.

• No bright line distinguishes true shared custody from joint legal custody with a primary parent, but the distinction can be important when calculating child support, as well as in a move-away case.

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Sole Legal and Physical Custody

• The residential custodial parent is solely responsible for all major decisions regarding the child's health, education, and welfare, as well as all day-to-day decisions.

• Some parents just agree to this, but it is commonly instituted after a judge has determined that one parent is absent or unfit due to a history of child abuse or neglect, drug addiction, or a similar issue.

• In the majority of such cases the non-custodial parent will still have visitation with the child, but visitation may be supervised or restricted to ensure the child’s safety.

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Q. What is “Parenting Time”?

A. In New Jersey, child visitation is often called “parenting time.” A parent is never just a visitor.

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Restrictions on Parenting Time

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• Courts may impose temporary safeguards, such as requiring a third party to supervise visitation until the parent has satisfied certain requirements—completing a drug rehabilitation program, for example.

• In the most extreme situations, a parent may be prohibited from exercising visitation entirely.

• An award to one parent of sole custody is not the same thing as a termination of the other parent’s rights. The other parent might still be obligated to pay child support.

• The parent also retains the right to return to court at a later time and request a modification of the custody and visitation order.


Losing Parental Rights

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• In cases of imminent risk of physical or psychological harm to a child due to parental abuse or abandonment, New Jersey DCP&P may make a temporary out-of-home placement for a child’s safety.

• A temporary custody arrangement ordinarily becomes permanent only if parental rights are terminated through a court process.

• DCP&P tries to provide parents with support and termination of rights is a last resort.


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New Jersey Court Procedures in Child Custody Cases

Child Custody 101: New Jersey Court Procedures

The court must have jurisdiction:

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New Jersey Family CourtTemporary Motions

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Do you need immediate help from the court?You can file a pendente lite motion for temporary

relief at any time during your case.

Temporary parenting orders may be necessary at the outset of the case to protect the children and

prevent one parent from making unilateral decisions.

Temporary child custody orders are generally based on maintaining the status quo that existed before commencement of any legal action related

to custody.


The court will require you to try to settle your parenting issues:

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New Jersey Family CourtProcedures for Parenting Time Disputes

The court sends most cases involving custody or parenting

time issues to court-mandated parenting mediation.

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Each parent proposes a parenting plan.

If parents cannot agree in mediation, the case is put on a priority track.


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New Jersey Parenting PlansThings to Include

Parenting plans become part of a court order.

At a minimum, a plan should:

•designate the child’s primary residence•describe legal custody •include a specific time-sharing schedule, and •include provisions for dividing holidays, birthdays, and vacations.


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Additional items to consider including in a parenting plan:

access to medical records, report cards, teachers, etc., first rights of babysitting, responsibility for specific expenses and for sharing

unanticipated expenses, responsibility for transportation of children and for

transportation costs, designated parent to take off work if a child is sick, means of addressing potential schedule changes or

modification of plan as children get older, agreement to attend mediation to resolve future

conflicts, and any other agreements you wish to include.


Q. What if you can’t resolve your parenting issues through negotiation or mediation?

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A. The court may want an expert opinion.


Custody Investigations & EvaluationsFamily Division Investigations

The judge can order a social investigation and “best interests of the child” report

May include home inspections

May also include psychological, psychiatric, parental functioning assessments or mental health evaluations if necessary

The judge can also interview the child in chambers

Private Custody Evaluations Parents can jointly hire a

mental health expert to conduct the investigation and prepare the report, or

Parents can each hire their own expert

Child custody evaluators must be neutral and follow uniform standards, regardless of who hires them

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Using a Neutral Child Specialist

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• A licensed mental health professional with training in child development and family systems can review proposed parenting plans in light of the best interests of the children.

• Choose someone with experience working with parenting issues common to family reorganization.


Private Custody MediationAn Out-of-Court Alternative

• Mediation can reduce conflict and decrease the stress on everyone in the family.

• Mediation is confidential and can keep your private family matters out of the public record.

• Private mediation offers many additional potential benefits, including increased control over both the process and results.

• Private mediation can be instituted prior to filing a court case.

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Private Custody Mediation A Process that Protects Children

• Watching parents argue is hard on children and often makes them feel

pressured to choose sides, potentially causing emotional turmoil.

• Mediation helps parents preserve or improve upon the cooperative

relationship essential to co-parenting.

• Parents who reach agreements on parenting matters in mediation often

learn valuable skills that can help them resolve future disagreements.

• Even if serious parenting disagreements arise in the future, parents can

often resolve them by returning to mediation.

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Post Judgment Modifications in New Jersey Child Custody Orders

Child Custody 101: Post-Judgment Modifications

Post Judgment ModificationsWhat if things change after final custody

orders?

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Post Judgment ModificationsWhat is a Substantial Change?

Potential triggering events

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• A decrease or increase in parenting time• A change in the primary residential parent• A change from sole custody to joint custody or vice

versa

Courts considering a request for a major change will require proof that the change is necessary to further the child’s best interests.


Post Judgment ModificationsMove Away Cases

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• A parent of a minor child born in New Jersey cannot move out of state with the child without a court order or agreement with the other parent.

• Under former law a parent wishing to move with the children needed to show that the move would benefit the child.

• Under current law a parent with sole or primary custody can move if the parent has a “good faith” reason for the move and the move will not be harmful to the child.



What about joint custody?

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• Joint legal custody is not sufficient to trigger a full review.

• If the parents have true “shared custody,” meaning an equal or nearly equal division of time along with an equal division of parental responsibilities, then the move-away parent must demonstrate that it would be in the child’s best interests for the court to change custody and designate the move-away parent as the primary custodial parent.

• Only after that hurdle is crossed will the good faith and lack of harm standard be applicable.



What is a “good faith” reason?

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• Essentially any reason that is genuine and not motivated by a desire to keep the child away from the other parent.

• Examples of acceptable reasons:• job offer,• new spouse’s job offer, • anticipated remarriage to a person who is pigeon-

holed to a different state, and • being closer to extended family members.



How does a parent show “lack of harm”?

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• Demonstrate that educational and recreational opportunities for the child in the new location are at least comparable to those in the original location, and

• Propose a reasonable visitation plan that will allow continuing and frequent contact between the child and the non-custodial parent.o Proposed new plan must allow the child to maintain

a close relationship with the non-custodial parent, and

o must specify when the child and the non-custodial parent would spend time together.



Acceptable alternative parenting plans:

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• Child will typically be with non-custodial parent during school holidays such as winter and spring break and for the majority of the summer break.

• Plan must specify a reasonable method of transportation for the child and allocate the costs of such transportation appropriately between the parents.

• Plan must also specify additional methods of contact, such as unlimited telephone calls, e-mail or text messaging, and SKYPE.

• Plan must actually work for the non-custodial parent.



Opposing a move-away:

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• Demonstrate shared custody if it exists, or • Demonstrate lack of good faith for the move or harm to

the child.• In either case, focus on the closeness of your

relationship with your child and show how the child would be adversely affected by your inability to fulfill current roles at a distance.


Baures v. Lewis Assessing Good Faith and Lack of Harm

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• the reasons for the move,• the reasons for the opposition to the move,• any past interactions between the parents that bear

upon reasons for or against the move, • whether the move will afford the child with comparable

health, educational and leisure opportunities,• any special needs or talents of a child requiring

accommodations, and whether such accommodations exist in the new location,

• the availability of a satisfactory visitation and communication arrangement that will allow a full and continuous relationship between the child and the non-custodial parent,

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Baures v. Lewis Assessing Good Faith and Lack of Harm

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• the likelihood that the custodial parent will continue to foster a relationship between the child and the non-custodial parent,

• the effect of the move on extended family relationships,• the preferences of a child of sufficient age,• whether the child is about to enter the senior year of

high school,• whether the non-custodial parent has the ability to

relocate, and• any other factor relevant to the best interests of the

child.

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Enforcing Child Custody Orders and Agreements in New Jersey

Child Custody 101: Enforcing Child Custody

Enforcing Child Custody OrdersInterference with Custody

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Enforcing Child Custody Orders Interference with Custody

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Enforcing Child Custody Orders Interference with Custody

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New Jersey Court Rule 5:3-7:

In cases involving failure to comply with parenting orders, New Jersey family law judges can order whatever remedies are justified under

the circumstances.

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Enforcing Child Custody OrdersPenalties for Interference

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A court might order temporary or permanent changes in the parenting plan, including some or all of the following:

•Compensatory parenting time for the parent who has lost time,

•Changes in transportation arrangements for visitation,

•Changes in the children’s pick-up location, or

•A change in the primary residential parent.


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A court can also order the interfering parent to:•pay the other parent’s attorney’s fees and court costs,•attend parenting classes or counseling,•pay for counseling for the children or for the other parent,•pay any costs resulting from non-compliance with court orders,•participate in community service, or•comply with a warrant for arrest.


Defenses to Interference with Custody

• Imminent danger to you or your child: Contact DCP&P (1 (855) INFO DCF.), the local police, or the district attorney’s office in your child’s county of primary residence and reveal the child’s location as soon as possible (and always within 24 hours).

• Domestic violence: Bring a custody action in an appropriate court as soon as reasonably possible.

• Contact an attorney or DCP&P immediately to ensure that you are complying with the law.

• Non-receipt of timely child support payments is not a defense.

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Child Custody 101: Questions? Can we help?

Schedule your FREE confidential legal consultation to discuss your New Jersey child custody matter

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Offices in Parsippany, Hackensack, Freehold, Basking Ridge and Mount Laurel,

The process and information contained in this presentation pertains to New Jersey Family Law.This presentation is for information purposes only and does not constitute legal advice.

For guidance on your specific situation, please contact a child custody attorney.

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